Authors: Richard Kluger
In the end, it was not the FTC determination that settled the numbers game so much as the industry’s knack for turning a sow’s ear into a silk purse. Listing the FTC-measured tar and nicotine yields in the companies’ ads invited an inference by the public that (1) the federal government was now exercising oversight of the cigarette industry and therefore (2) the yields listed were not likely to represent a terrible health hazard—or else the government would not be permitting the product to be marketed in the first place. And there was the further tacit acknowledgment by the industry of the point made by one of its most ardent veteran detractors, New Orleans surgeon Alton Ochsner, in his 1970 book,
Smoking: Your Choice Between Life and Death:
“By resisting the FTC, the industry may find itself confronting the FDA, which will demand laboratory proof that the product is safe for human consumption—and that can put an end to the tobacco business overnight.”
This industry nightmare of strict federal oversight of cigarettes as a drug—even if their manufacturers made no health claims for them—was at about this time also on the mind of
The New Yorker’s
Thomas Whiteside, one of the few U.S. journalists who fully grasped the smoking and health issue. He wrote to the FDA to ask why it was not timely for the agency to include cigarettes on the list of products it was empowered to deem hazardous under the 1960 congressional act, covering any substance the FDA found to be toxic or to cause illness or injury “through ingestion, inhalation, or absorption through a body surface.” Since cigarettes had been judged to be a hazardous substance “beyond any doubt,” Whiteside wondered why the FDA still hesitated in a posture “grotesquely inconsistent” with the agency’s recent decision to ban cyclamates, a marginal peril when compared to the dangers of tobacco smoke. At the least, Whiteside urged, the FDA might require cigarette makers to reduce tar and nicotine yields and impose “strict and meaningful restraints” on cigarette
promotions the same way the agency regulated claims made for prescription drugs.
FDA commissioner Dr. Charles Edwards responded that the 1966 labeling law prevented the FDA from requiring a different or additional warning on cigarette packs. He also claimed that his agency had no power to regulate product advertising, and all it could frankly do, if it found cigarettes to be a drug, was to ban the product outright—so serious a step that, as a practical matter, it would have to be taken by Congress. But all of that begged the point Whiteside was trying to make—that the FDA could have found cigarettes a health peril and, accordingly, placed limits on the tar and nicotine yields. Such a muscular posture, however, was entirely at odds with the prevailing mood at the FDA, according to John T. Walden, one of its top-ranking public-information officers throughout the ’Seventies. His agency “turned flips out of abject fear,” said Walden, at the idea of clashing with the tobacco industry and its congressional champions, even though “a damned good case could have been made for the FDA’s claiming jurisdiction over cigarettes.”
After two years of protracted negotiations, the tobacco companies agreed to list the yields in their ads but not on the cigarette packs themselves—a compromise that the FTC swallowed, probably because it did not want to test its strength in the courts by imposing the requirement on packs as well. Half a loaf was better than none. By 1972, the FTC was even opposing a bill by anti-smoking stalwart Senator Frank Moss calling for a ceiling on the tar and nicotine yields. The FTC reasoned that a congressionally enacted ceiling on the yields might imply that any numbers below it were safe and represented a tolerable health risk. By then, too, the industry had indicated its willingness to carry the warnings in its ads.
The final agreement, after nine months of negotiations between the industry’s lawyers and the FTC team led by Pitofsky, called for nothing so crass—and effective—as a skull and crossbones or similarly alarming emblem on the warning, only a minimal ruled box, black print on a white background, with two lines of text identical to the language on the packs, in print 10 to 16 points in height, scaled upward with the size of the ad, and to constitute a separate element in the layout, not blended invisibly among surrounding elements. It was a good deal less than the new young Turks at the FTC had wanted, “but more than we thought we would get at the start,” Pitofsky recalled.
VI
SPURRED
by Surgeon General Steinfeld’s call, federal regulatory agencies began for the first time to address the health and comfort of nonsmokers under unwitting assault by smokers’ irresistible impulse to light up. In any collision
between their right to satisfy that impulse and the damage it might inflict on others, smokers rarely doubted whose interest ought to prevail. But their ranks were now thinning as a proportion of the overall population, and they were plainly outnumbered by a nonsmoking majority increasingly impatient with other people’s smoke getting on their clothes, into their food, in their eyes, and inside their bodies.
The government, when goaded, slowly began to address the matter as a readily manageable irritant, not openly antisocial conduct. Public interstate transit, on which nonsmokers were captive victims of tobacco users, was the obvious place to begin, and airplanes, where the oxygen supply was most critical, was the first target for reformers. Ralph Nader launched what would become the nonsmokers’ rights movement at the end of 1969 by petitioning the Federal Aviation Administration (FAA) to ban the use of cigarettes, cigars, and pipes on all passenger flights, arguing that the smoke annoyed nonsmokers, distracted the flight crew, and posed a danger to health and a fire hazard for all aboard. That same week, John Banzhaf, the Nader wannabe, called for a drastic measure: separate sections for smokers and nonsmokers on all domestic flights.
But was smoke in airplane cabins truly a health hazard or merely a visible, smellable annoyance for nonsmokers? A joint FAA-HEW study of that question failed to produce “persuasive evidence that exposure to tobacco smoke, in concentrations likely to occur [in aircraft] (assuming normal ventilation rates) is injurious to the health of nonsmokers,” so the FAA declined to respond to the Nader and Banzhaf pleas. The reformers had better luck with the more consumer-oriented Civil Aeronautics Board, which in September 1972 responded positively to a Nader petition to require separate passenger sections, noting that while the health evidence justifying such a step was scanty, 60 percent of all passengers indicated they were bothered by smoke on flights. This figure was almost identical to the findings in a national poll a few years earlier, when three of five responded that they found it annoying to be next to a smoker in almost any circumstance, and a survey in
Nation’s Business
in 1974 found overwhelming sentiment in favor of separating smokers. When the airline operators pointed out to CAB regulators that the air in their craft was ventilated completely every five minutes and was thus cleaner than the Environmental Protection Agency required in public buildings, the CAB replied that the high-density seating on planes made such standards inapplicable, and ordered separate seating.
The order was often grudgingly executed. Complaints were common about an inadequate number of seats being set aside for the nonsmoking sections and the hazy nature of the boundary between the sections. Enforcement, too, was lax, as the government relied on the private carriers to satisfy the wishes of the preponderant number of their customers, but the airlines were not about to
punish the tobacco-addicted among their clientele when the rest had nowhere else to turn for timesaving travel. The CAB never did crack down on casual enforcers of the segregated seating solution, though it did order tougher restrictions, such as an in-flight ban on the smoking of cigars and pipes. Banzhaf’s stalking horse, Action on Smoking and Health (ASH), sued the CAB in 1.979 seeking diligent enforcement of the separated sections, and while the federal courts supported him, the agency temporized. And when the avowedly deregulatory Reagan administration took power in 1981, it rolled back even mild CAB reforms, and devotees of cigars and pipes were returned to the smoking sections.
A few weeks after his initial petition to the FAA, Nader called on the Interstate Commerce Commission to establish nonsmoking rules for buses. Within two years—lightning speed in the bureaucratic universe—smokers were confined to the rear 20 percent of vehicles traveling interstate routes. (In 1976, they were given an additional 10 percent of the seats.) Smokers were segregated in interstate railroad travel beginning in 1973, but their habit was permitted in one-half of the car space on any given train.
Before restricting smokers in places less confined than the interiors of public carriers, federal officials required persuasive scientific evidence that secondhand smoke was anything more than a nuisance. A few of the less populous Western states, however, undertook early initiatives, starting with Arizona, the first to enact serious antismoking rules. The crusade was led by a Scottsdale woman, Betty Carnes, better known as an ornithologist than a political operative. After succeeding in having three floors of the hospital that she partly administered set aside for the exclusive use of nonsmoking patients, Carnes laid siege to the Arizona legislature for its 1972 and 1973 terms, studying the smoking habits of every member to help her garner allies. She made numerous television appearances, sent off 300-word telegrams to resistant lawmakers, and dispensed thousands of her “Thank You for Not Smoking” signs, one of which made its way to Surgeon General Steinfeld’s desk. After two tireless years, she won, as Arizona banned smoking in elevators, libraries, theaters, museums, concert halls, and buses.
Two years later, at its 1975 legislative session, Minnesota enacted its far more sweeping Clean Indoor Air Act, based on a Swedish model, which made it illegal to smoke in almost all confined public places unless explicitly permitted. Among the sites omitted from the Arizona statute but affected by the Minnesota law were restaurants, meeting rooms, and workplaces, where separate smoking areas were mandated. Belatedly, the tobacco industry awoke to this new threat at the state level. Its lobbyists flocked to state capitals and argued that smoking restrictions were unfair, unjustified by scientific findings, and unenforceable, given the heavy burden of local law officers dealing with serious crimes. From the first, though, most smokers, as if in recognition of their own
thralldom to a habit that did them no good, willingly put out their butts when advised that they were violating the law.
Throughout the 1970s, though, the antismoking effort was hardly a groundswell as the industry installed an effective political apparatus at the state level. While Utah, Nebraska, and Montana passed clean-air laws in the wake of the Minnesota statute, theirs were less comprehensive; meanwhile, similar restrictive measures were vetoed by the governors of Illinois and Maine. The failure of the tobacco-control movement to gain momentum early on was plainly traceable to the softness of the scientific case against secondhand smoke. In 1975, a pair of investigators at Harvard measured the intake by nonsmokers in restaurants, bars, and railroad cars and reported that the dosage, depending on the duration of the exposure, ranged from 1/100 to 1/1,000 of the tar and nicotine yield of a filter cigarette smoked directly. At an international conference on cancer that same year, Cuyler Hammond of the ACS stated that there was as yet “no shred of evidence” that nonsmokers could contract cancer from environmental tobacco smoke. And Ernst Wynder, the most assiduous investigator in the field, added, “Passive smoking can provoke tears or can be otherwise disagreeable, but it has no influence on health [because] the doses are small.”
VII
IF
state governments were slow to restrict consumption of tobacco in public, the U.S. Congress was avid about exempting it altogether from the spate of consumer protection laws passed during the ’Sixties and ’Seventies. Only the 1960 Federal Hazardous Substances Act had not explicitly excluded tobacco products, and the FDA had insisted several times, fearing a battle with the political forces that held its purse strings, that the law was not meant to apply to tobacco. The 1963 Clean Air Act mandated federal monitoring of airborne pollutants, but that power applied only to the outdoors, where environmental tobacco smoke readily dissipated. And while the Occupational Safety and Health Administration (OSHA) later set limitations on work-site exposure to twenty-four of the airborne pollutants and substances present in tobacco smoke, including carbon monoxide and acrolein, that agency declined to regulate tobacco use without evidence that a health hazard existed from secondhand smoke. Without explanation, tobacco products were then excluded from the 1966 Fair Labeling and Packaging Act, the 1970 Controlled Substances Act, the 1972 Consumer Product Safety Act, and the 1976 Toxic Substances Act.
Illustrative of the stranglehold the tobacco lobby and its congressional water carriers had on the federal legislative process was the fate of the effort by Utah’s Senator Frank Moss to find a chink in the bureaucratic ramparts erected
in defense of cigarette use. Moss, chairman of the Senate subcommittee on consumer affairs, had joined in 1974 with the American Public Health Association to petition the Consumer Product Safety Commission to ban as hazardous all cigarette brands that yielded more than 21 milligrams of tar—20 percent of the market. Moss
et al
. argued that under the 1972 act establishing the commission, Congress had transferred to it the HEW Secretary’s former power to administer the 1960 hazardous substances act, which had
not
excluded tobacco products, and that this transfer superseded the tobacco exemption spelled out in the 1972 act—in short, a conflict seemed to exist between the statutes, and Moss was trying to charge through the loophole.
Moss’s argument that the FDA’s failure to impose controls on tobacco in no way curtailed the Consumer Product Safety Commission’s authority to do so lost by a 32-to-2 vote. Moss then found a friendly U.S. federal district judge, Oliver Gasch, who in April 1975 held that the consumer product commission could exercise its sway over tobacco—a potentially grave setback for the industry.